Case: 1:22-cv-00650 Document #: 1 Filed: 02/05/22 Page 1 of 25 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Stephanie Surratt, individually and on behalf
`of all others similarly situated,
`
`1:22-cv-00650
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`CVS Pharmacy, Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
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`1.
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`CVS Pharmacy, Inc. (“Defendant”) manufactures, labels, markets, and sells infant
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`formula with iron to children between 9 and 18 months, identified as “Toddler Beginnings,” under
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`the CVS Health brand (the “Product”).
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`

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`Case: 1:22-cv-00650 Document #: 1 Filed: 02/05/22 Page 2 of 25 PageID #:2
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`I.
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`BASICS OF INFANT NUTRITION
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`2. According to the World Health Organization (“WHO”) and private and public health
`
`groups, breast milk is the “gold standard” for infant nutrition.
`
`3.
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`The American Academy of Pediatrics (AAP) recommends “exclusive breastfeeding
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`for the first 6 months of life with the addition of complementary foods and the continuation of
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`breastfeeding until at least 12 months of age.”1
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`4.
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`Infant formula with added iron is the accepted alternative where breastfeeding is not
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`an option. 21 C.F.R. § 106.3 (defining infant formula as “a food which purports to be or is
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`represented for special dietary use for infants [0-12 months] by reason of its simulation of human
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`milk or its suitability as a complete or partial substitute for human milk.”).
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`5.
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`The transition beyond the first twelve months is “critical for establishing healthy
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`dietary preferences and preventing obesity in children.”2
`
`II.
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`INCREASED BREASTFEEDING RESULTS IN COMPANIES SEEKING NEW
`WAYS TO SELL INFANT FORMULA
`
`6.
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`Since 2003, rates of breastfeeding have increased significantly, resulting in a
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`decrease in sales of infant formula.
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`7.
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`To make up for declining sales of infant formulas, companies have introduced
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`products marketed as “transition formulas,” “follow-on formulas,” “weaning formulas,” “toddler
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`milks,” and “growing-up milks” (“GUMs”) (collectively, “Transition Formulas”) to children
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`between 12 and 36 months old.3
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`
`
`1 Id.
`2 Jennifer L. Harris, and Jennifer L. Pomeranz, "Infant formula and toddler milk marketing: opportunities to address
`harmful practices and improve young children’s diets." Nutrition Reviews (2020).
`3 Jennifer L. Pomeranz, Maria J. Romo Palafox, and Jennifer L. Harris. "Toddler drinks, formulas, and milks: Labeling
`practices and policy implications." Preventive medicine 109 (2018): 11-16 (citing American Academy of Pediatrics
`(AAP) Committee on Nutrition and World Health Organization (WHO) findings).
`
`2
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`8. U.S. Nielsen data shows advertising spending on transition formula quadrupled
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`between 2003 and 2015, with sales increasing almost threefold.
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`9.
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`The formula trade group, the Infant Nutrition Council of America (“INCA”),
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`recommends that “transition formulas,” such as Toddler Beginnings, be used to fill “nutrition
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`gaps,” beyond 12 months.4
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`10. However, a global consensus of pediatric health organizations, including the AAP
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`Committee on Nutrition and the relevant Sub-Committees of the WHO, and government bodies,
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`disagree with INCA’s conclusion, and advise that beyond 12 months, nutritional needs should be
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`met with whole cow’s milk, water and healthy whole foods as part of a balanced diet.5
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`11. Companies like Defendant capitalize on consumers’ familiarity and acceptance of
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`federally-approved infant formula and continue selling them the same or substantially identical
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`products even when their children are no longer infants, defined as zero to twelve months old.
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`12. The identical labeling elements ride the coattails of the carefully regulated and
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`trusted infant formula to drive sales.
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`13. Defendant’s Toddler Beginnings (top) is advertised and marketed in a way that is
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`similar and parallel to its Infant Formula (bottom), through common and parallel labeling formats,
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`images, design, type size, fonts, claims, call-outs and graphics.
`
`
`4 Olga Khazan, The Ominous Rise of Toddler Milk, Baby-formula sales are slumping, so the companies that make it
`have turned to supplements for 3-year-olds, December 29, 2020.
`5 AAP Committee on Nutrition, 1988. Follow-on formulas follow-up or weaning formulas. Pediatrics 83, 1067 1989;
`World Health Organization, July 17, 2013. Information concerning the use and marketing of follow-up formula.
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`3
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`
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`
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`14. The representations further the incorrect impression that the Toddler Beginnings is
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`what children should be fed in “next stage” beyond infancy.
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`Infant Formula
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`Toddler Beginnings
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`Infant Formula With Iron – Milk-Based
`Powder
`
`Infant Formula With Iron – Milk-Based
`Powder
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`0 – 12 Months
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`Stage 2: 9-18 Months
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`4
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`Experts recommend DHA & Choline
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`DHA, Iron & Choline to Help Nourish the
`Brain
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`Nutrients found in breast milk
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`Balanced Nutrition
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`Neuro Complete
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`Neuro Support
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`Supports Brain Development
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`Supports Brain Development
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`• Cognitive
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`• Social
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`• Motor
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`• Cognitive
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`• Social
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`• Motor
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`• Communication
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`• Communication
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`Stuffed Duck
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`Non-GMO†
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`Building Blocks With Letters
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`Non-GMO†
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`† Ingredients not genetically engineered
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`† Ingredients not genetically engineered
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`15. The Product’s name, “Infant Formula With Iron – Milk-Based Powder” (top) is
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`deceptive and misleading because it is confusingly similar and identical to the name of Defendant’s
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`infant formula, “Infant Formula – Milk-Based Powder With Iron” (bottom).
`
`
`
`
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`16. These identical names mislead caregivers by not telling them how the Product may
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`differ from the Infant Formula.
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`17. While the Infant Formula product contains a picture of a stuffed duck, the Product
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`contains building blocks containing letters of the alphabet.
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`5
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`18. This shows caregivers that the Product should be part of a child’s progression and
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`development as they grow.
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`19. The Product’s labeling is misleading because it displays nutrition information via an
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`infant formula panel, even though it is not intended or recommended for infants.
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`Toddler Beginnings
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`Infant Formula
`
`
`
`
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`20. Caregivers are familiar with the unique format that nutrition information is presented
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`on infant formula products, distinct from the Nutrition Facts on all other foods.
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`21. The use of the infant formula panel on a product not intended for infants is misleading
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`6
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`because it gives caregivers the impression that the Product, like infant formula, is subject to
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`heightened and specific FDA regulations.
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`22.
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`In layman’s terms, it makes the Product look more “serious” and quasi-clinical.
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`III. TODDLER BEGINNINGS IS NUTRITIONALLY INCONSISTENT WITH EXPERT
`ADVICE AND MORE EXPENSIVE THAN RECOMMENDED ALTERNATIVES
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`23. Child nutrition experts universally oppose consumption of added sugars by children
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`between twelve and twenty-four months.
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`24. Contrary to the recommended nutritional needs of children in this age range, the
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`Product contains added sugar, shown in the ingredients as “CORN SYRUP” and “LACTOSE.”
`
`
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`INGREDIENTS: NONFAT MILK, VEGETABLE OILS
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`(PALM OLEIN, SOY,
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`COCONUT, HIGH OLEIC [SAFFLOWER OR SUNFLOWER] OILS), CORN SYRUP,
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`LACTOSE, CALCIUM PHOSPHATE, LESS THAN 1%: MORTIERELLA ALPINA OIL
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`(A SOURCE OF ARACHIDONIC ACID (ARA)), CRYPTHECODINIUM COHNII OIL (A
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`SOURCE OF DOCOSAHEXAENOIC ACID (DHA)), FRUCTO-OLIGOSACCHARIDES
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`(FOS), MIXED TOCOPHEROL CONCENTRATE, MONOGLYCERIDES, SOY
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`LECITHIN, VITAMIN A PALMITATE, VITAMIN D (CHOLECALCIFEROL), VITAMIN
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`E
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`(DL-ALPHA TOCOPHERYL ACETATE), VITAMIN K
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`(PHYTONADIONE),
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`ASCORBYL PALMITATE, BETA-CAROTENE, THIAMINE HYDROCHLORIDE,
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`7
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`RIBOFLAVIN,
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`PYRIDOXINE
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`HYDROCHLORIDE,
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`CYANOCOBALAMIN,
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`NIACINAMIDE, FOLIC ACID, CALCIUM PANTOTHENATE, BIOTIN, ASCORBIC
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`ACID, CHOLINE BITARTRATE, INOSITOL, CALCIUM CARBONATE, CALCIUM
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`HYDROXIDE, CUPRIC SULFATE, FERROUS SULFATE, MANGANESE SULFATE,
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`POTASSIUM BICARBONATE, POTASSIUM CHLORIDE, POTASSIUM PHOSPHATE,
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`SODIUM CITRATE, SODIUM SELENITE, ZINC SULFATE, L-CARNITINE, TAURINE.
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`25. The use of the infant formula panel as opposed to the legally required Nutrition Facts
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`prevents caregivers from discovering the Product contains added sugars.
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`26. Compared to whole cow’s milk, recommended by global health authorities, the
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`Product contains more calories, fat and sugar (carbohydrates), but less protein.
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`Nutritional Composition for 8 fl. oz.
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`Nutrient
`
`Unit
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`Whole Cow’s Milk
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`Toddler Beginnings
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`Energy
`
`cal
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`Protein
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`Total Fat
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`g
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`g
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`Carbohydrate g
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`149
`
`7.69
`
`7.98
`
`12.8
`
`160
`
`4.16
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`8.48
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`16.80
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`27. The Product costs no less than $20.79 for 20 oz (567 g).
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`28. Based on the label, the Product yields 134 fl oz.
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`29. According to the Retail Milk Prices Report of the United States Department of
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`Agriculture, whole milk in major cities in this State costs $3.85 per gallon.
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`30. When the per ounce cost of whole milk is compared to the Product, the price
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`difference is apparent.
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`8
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`
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`Price
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`Price ($/8 fl oz)
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`Price ($/gallon)
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`
`
`
`
`
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`Cow’s Milk (whole)
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`Toddler Beginnings
`
`
`
`
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`0.24
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`3.85
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`1.24
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`19.86
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`31. Toddler Beginnings is over five times the cost of the recommended alternative and
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`nutritionally superior choice of whole cow’s milk.
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`IV. SIMILAR LABELING SHOWN TO MISLEAD CAREGIVERS
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`32. Studies have shown that the similar labeling of infant and transition formulas causes
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`caregivers to make inaccurate and ill-advised nutritional purchasing decisions.
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`33. For instance, one study concluded that 52% of caregivers expected transition
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`formulas, such as the Toddler Beginnings, to “give toddlers nutrition that they wouldn’t get from
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`other sources.”6
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`34. Seventy percent of caregivers mistakenly believe that products like Toddler
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`Beginnings are nutritionally appropriate for children in the age range indicated on the label, despite
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`expert opinions that they offer “no unique nutritional value beyond what could be achieved through
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`a nutritionally adequate diet; furthermore, they contribute added sugars to diet.”7
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`35. Public health research has shown that use of products such as Toddler Beginnings
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`results in prolonged use of expensive, re-branded, infant formula instead of transitioning infants
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`to cow’s milk, water and other healthy foods, which provide nutrients that milk cannot provide.
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`V. MISLEADING ABOUT GMOS
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`36.
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`In recent years, consumers have become significantly more aware of, and sensitive
`
`
`6 Maria J Romo-Palafox and JL Pomeranz et al., Marketing claims on infant formula and toddler milk packages: What
`do caregivers think they mean? , UCONN Rudd Center for Food Policy & Obesity, September 2019.
`7 Id.
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`9
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`to, products that have been approved by independent third-parties, and buy those products based
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`upon that independent verification of an attribute or quality they value.
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`37. Consumers have become significantly more aware of, and sensitive to, genetically
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`modified organisms (“GMOs”) in their food.
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`38. This is especially important when providing nutrition to small children.
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`39. Many consumers try to avoid GMOs for reasons including negative health and
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`environmental impact.
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`40. To meet consumer demand for non-GMO products, an industry of independent,
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`third-party validation companies has developed.
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`41. These independent organizations review a product’s ingredients and assure
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`consumers they do not contain GMOs nor come from animals who have consumed GMO feed.
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`42. Obtaining this approval allows companies to obtain a competitive advantage and to
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`sell more products at higher prices.
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`43. Recognizing the value of independent certification, the Federal Trade Commission
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`(“FTC”) has warned companies to be careful in making representations about independent
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`certification. See 16 C.F.R. § 260.1.
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`44. The FTC guidelines against deceptive marketing regarding “Certifications and Seals
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`of Approval” state that it is deceptive to misrepresent, directly or by implication, that a product,
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`package, or service has been endorsed or certified by an independent third party. 16 C.F.R. §
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`260.6(a).
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`45.
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`In violation of the FTC’s warnings, defendant represents the Product as verified by
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`an independent third-party with respect to GMOs, through the front panel mark stating “Non-
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`GMO¥ – ¥ Ingredients not genetically engineered.”
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`46.
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`In developing their “non-GMO” mark, defendant mimicked the content and message
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`of the foremost independent verification organization – the Non-GMO Project.
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`
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`47.
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` The Non-GMO Project, headquartered in Bellingham, Washington, is a not-for-
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`profit organization founded in 2007 that bases its work upon “rigorous scientific foundation and
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`
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`world-class technical support.”
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`48. Through the Non-GMO Project’s work with the Global ID Group, these entities are
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`“the world leaders in non-GMO testing, certification, and consulting.”
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`49. The Non-GMO Project’s Product Verification Program is widely recognized with
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`more than 3,000 verified brands, over 43,000 products and more than $19.2 billion in annual sales.
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`50. The Non-GMO Product Verification Program verifies that products are not derived
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`from GMO crops and that milk and meat are not derived from animals fed GMO crops.
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`51. Unfortunately for consumers, Defendant’s non-GMO representation is false and
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`misleading.
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`52. Defendant’s non-GMO mark is not bestowed by a non-profit or neutral third-party,
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`but by itself.
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`53. Looking to profit off consumer desire for independently validated products,
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`Defendant created a deceptive non-GMO mark that mimics the Non-GMO Project seal.
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`54. The iconic orange butterfly of the Non-GMO Project is noticeably mimicked, as
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`Defendant’s mark uses the “Yen” symbol in place of an asterisk, which appears to copy the “Y”
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`formed by the butterfly’s wings.
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`55. Defendant could have chosen a hundred other symbols to use instead of the yen
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`
`
`
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`symbol but chose not to.
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`56. Defendant’s mark tells the “half-truth” that while the Product may not be made
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`directly with genetically modified or engineered ingredients, GMOs were used only one level back
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`in the food production process.
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`57. For example, the Product contains dairy ingredients including nonfat milk and
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`lactose, that come from cows fed GMO grains.
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`58. Therefore, the ingredients in the Product are derived from GMOs even though the
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`Product may not be made directly with GMO ingredients.
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`59. This violates the standard of the Non-GMO Project, which prohibits its seal on dairy-
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`based products that could be from animals fed GMO feed.
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`60. Defendant avoids the Non-GMO Project’s feed standard by using their own, self-
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`created non-GMO mark, misleading consumers.
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`61. Defendant relies on consumer familiarity and trust of the seal of the Non-GMO
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`Project and does not expect them to realize there is a difference.
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`VI. CONCLUSION
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`62. The Product contains and makes other representations and omissions which are false
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`or misleading.
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`63. While the Product describes itself as “milk-based powder” and contains dairy as the
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`first ingredient, this is in the form of nonfat milk.
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`64. Young children require the nutrients not from nonfat milk, but from whole milk,
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`which contains milkfat, essential to child development.
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`65.
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`In place of milkfat, the Product substitutes lower quality vegetable fats in the form
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`of palm and other oils.
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`66. Consumers expect the statement of “milk-based powder” to mean a product based
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`on milkfat, instead of nonfat milk.
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`67. Defendant’s representation of the Product as “milk-based powder” is misleading.
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`68. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components, attributes, and features of a product, relative to itself and other
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`comparable products or alternatives.
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`69. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`70. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`71. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Product or would have paid less for it.
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`72. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than no less than $20.79 for 20 OZ, excluding tax and sales,
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`higher than similar products, represented in a non-misleading way, and higher than it would be
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`sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`73.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2).
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`74. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`75. Plaintiff Stephanie Surratt is a citizen of Illinois.
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`76. Defendant CVS Pharmacy, Inc. is a Rhode Island corporation with a principal place
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`of business in Woonsocket, Providence County, Rhode Island
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`77. Plaintiff and Defendant are citizens of different states.
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`78. The Product is available to consumers from Defendant’s retail stores and its website.
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`79. Venue is in the Eastern Division in this District because a substantial part of the
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`events or omissions giving rise to these claims occurred in Kane County, i.e., Plaintiff’s purchase,
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`consumption, and/or use of the Product and awareness and/or experiences of and with the issues
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`described here, consumption referring to that of the child whose care with which she was entrusted.
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`Parties
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`80. Plaintiff Stephanie Surratt is a citizen of Aurora, Kane County, Illinois.
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`81. Defendant CVS Pharmacy, Inc. is a Rhode Island corporation with a principal place
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`of business in Woonsocket, Rhode Island, Providence County.
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`82. Founded as Consumer Value Stores over fifty years ago in Massachusetts, CVS has
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`consistently been a place for consumers to fill their most important needs.
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`83. Originally selling a variety of goods, CVS became focused on meeting the healthcare
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`needs of Americans and is a leading pharmacy and healthcare company.
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`84. From the almost ten thousand CVS stores in all 50 states, consumers have confidence
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`CVS is looking out for their health.
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`85. Consumers consistently rank CVS as giving them the most value for their money, in
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`addition to relying on the advice of their trained staff and pharmacists.
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`86. According to surveys, the CVS brand enjoys a high level of trust from the public,
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`more than other national pharmacies.
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`87. CVS is known for its honest values and unique approach to its business and the
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`communities it operates in, through a rigorous code of conduct, and high levels of transparency.
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`88. While CVS stores sell leading national brands, they sell a large number of products
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`under one of their private label brands, CVS Health.
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`89. Private label products are made by third-party manufacturers and sold under the
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`name of the retailer, or its sub-brands.
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`90. Previously referred to as “generic” or “store brand,” private label products have
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`increased in quality, and often are superior to their national brand counterparts.
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`91. Products under the CVS Health brand have an industry-wide reputation for quality
`
`and value.
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`92.
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`In releasing products under the CVS Health brand, Defendant’s foremost criteria was
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`to have high-quality products that were equal to or better than the national brands.
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`93. Defendant is able to get national brands to produce its private label items due its loyal
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`customer base and tough negotiating.
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`94. That CVS Health branded products met this high bar was proven by focus groups,
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`which rated them above the name brand equivalent.
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`95. Private label products generate higher profits for retailers because national brands
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`spend significantly more on marketing, contributing to their higher prices.
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`96. A survey by The Nielsen Co. “found nearly three out of four American consumers
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`believe store brands are good alternatives to national brands, and more than 60 percent consider
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`them to be just as good.”
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`97. Private label products under the CVS Health brand benefit by their association with
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`consumers’ appreciation for the CVS brand as a whole.
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`98. The development of private label items is a growth area for CVS, as they select only
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`top suppliers to develop and produce CVS Health products.
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`99. The Product is available to consumers from Defendant’s retail stores and its website.
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`100. Plaintiff purchased the Product on one or more occasions within the statutes of
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`limitations for each cause of action alleged, at CVS, at locations including 300 N Eola Rd Aurora
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`IL 60502-9062 between January 2020 and January 2021, among other times.
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`101. Plaintiff believed the Product was nutritionally-appropriate for a child in the
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`identified age range, instead of a product that is not recommended by all relevant expert bodies.
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`102. Plaintiff bought the Product because she expected it was nutritionally-appropriate for
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`a child in the identified age range, instead of a product that is not recommended by all relevant
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`expert bodies because that is what the representations said and implied.
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`103. Plaintiff had a legal duty as a caregiver of a child in the age range identified on the
`
`label and relied on Defendant’s representations that the Product was nutritionally appropriate for
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`such a child.
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`104. Plaintiff believed the Product was the next step for the child for whose care she was
`
`obligated, based on the labeling, and physical placement next to the infant formula product sold
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`by Defendant.
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`105. Plaintiff relied on the words, layout, packaging, and/or images on the Product, on the
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`labeling, statements, omissions, and/or claims made by Defendant in digital, print and/or social
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`media, which accompanied the Product and separately, through in-store, digital, audio, and print
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`marketing.
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`106. Plaintiff was aware that Defendant’s infant formula was marketed similarly to the
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`Product, which affected Plaintiff’s decision to purchase it.
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`107. Plaintiff was disappointed because she believed the Product was nutritionally-
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`appropriate for a child in the identified age range, instead of a product that is not recommended by
`
`all relevant expert bodies.
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`108. Plaintiff bought the Product at or exceeding the above-referenced price.
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`109. Plaintiff would not have purchased the Product if she knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`110. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`17
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`Case: 1:22-cv-00650 Document #: 1 Filed: 02/05/22 Page 18 of 25 PageID #:18
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`which did not misrepresent their attributes, features, and/or components.
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`111. The Product was worth less than what Plaintiff paid and she would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`112. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
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`composition.
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`113. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but for other similar nutritionally-appropriate foods and beverages for children entrusted to her
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`care, because she is unsure whether those representations are truthful.
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`Class Allegations
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`114. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`Illinois Class: All persons in the State of Illinois who
`purchased
`the Product during
`the statutes of
`limitations for each cause of action alleged; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Iowa, Louisiana, West Virginia,
`Michigan, Texas, Arkansas, Virginia and Oklahoma,
`who purchased the Product during the statutes of
`limitations for each cause of action alleged.
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`115. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`116. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`117. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`118. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`Case: 1:22-cv-00650 Document #: 1 Filed: 02/05/22 Page 19 of 25 PageID #:19
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`and the class is definable and ascertainable.
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`119. Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`120. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`121. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
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`(Consumer Protection Statute)
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`122. Plaintiff incorporates by reference all preceding paragraphs.
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`123. Plaintiff and class members desired to purchase a product that was nutritionally-
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`appropriate for a child in the identified age range, instead of a product that is not recommended by
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`all relevant expert bodies.
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`124. Defendant’s false and deceptive representations and omissions are material in that
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`they are likely to influence consumer purchasing decisions.
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`125. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`126. Plaintiff relied on the representations that the Product was nutritionally-appropriate
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`for a child in the identified age range, instead of a product that is not recommended by all relevant
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`expert bodies.
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`127. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Case: 1:22-cv-00650 Document #: 1 Filed: 02/05/22 Page 20 of 25 PageID #:20
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` Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`128. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the above-referenced consumer protection statute and prohibit the use of unfair or
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`deceptive business practices in the conduct of trade or commerce.
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`129. Defendant intended that each of members of the Consumer Fraud Multi-State Class
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`would rely upon its deceptive conduct, and a reasonable person would in fact be misled by this
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`deceptive conduct.
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`130. As a result of Defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, each of the other members of the Consumer Fraud Multi-State Class have
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`sustained damages in an amount to be proven at trial.
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`131. In addition, Defendant’s conduct showed motive, and the reckless disregard of the
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`truth such that an award of punitive damages is appropriate.
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`Breach of Contract
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`132. Plaintiff entered into a contract with Defendant for purchase of the Product.
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`133. The terms of the contract provided that the Product was nutritionally-appropriate for
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`a child in the identified age range, instead of a product that is not recommended by all relevant
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`expert bodies.
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`134. Defendant breached the contract because the Product did not meet the terms Plaintiff
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`agreed to.
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`135. Plaintiff was damaged by the breach, and those damages include the purchase price.
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`Case: 1:22-cv-00650 Document #: 1 Filed: 02/05/22 Page 21 of 25 PageID #:21
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`136. The Product was manufactured, identified, and sold by Defendant and expressly and
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`impliedly warranted to Plaintiff and class members that it was nutritionally-appropriate for a child
`
`in the identified age range, instead of a product that is not recommended by all relevant expert
`
`bodies.
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`137. Defendant directly marketed the Product to Plaintiff and consumers through its
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`advertisements and marketing, through various forms of media, on the packaging, in print
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`circulars, direct mail, and targeted digital advertising.
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`138. Defendant knew the product attributes that potential customers like Plaintiff were
`
`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`139. Defendant’s representations about the Product were conveyed in writing and
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`promised it would be defect-free, and Plaintiff understood this meant the Product was nutritionally-
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`appropriate for a child in the identified age range, instead of a product that is not recommended by
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`all relevant expert bodies.
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`140. Defendant’s representations affirmed and promised
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`that
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`the Product was
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`nutritionally-appropriate for a child in the identified age range, instead of a product that is not
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`recommended by all relevant expert bodies.
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`141. Defendant described the Product as one which was nutritionally-appropriate for a
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`child in the identified age range, instead of a product that is not recommended by all relevant expert
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`bodies, which became part of the basis of the bargain that the Product would conform to its
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`affirmations and promises.
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`142. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`Case: 1:22-cv-00650 Document #: 1 Filed: 02/05/22 Page 22 of 25 PageID #:22
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`143. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`the largest healthcare company in the nation, known for its expertise, established history of putting
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`customers first, and delivering value and market leader.
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`144. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`145. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`146. Plaintiff hereby provides notice to Defendant that it has breached the express and
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`implied warranties associated with the Product.
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`147. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`148. The Product did not conform to its affirmations of fact and promises due to
`
`Defendant’s actions.
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`149. The Product was not merchantable because it was not fit to pass in the trade as
`
`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
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`promises or affirmations of fact made on the packaging, container or label.
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`150. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which the Product was bought by Plaintiff, because she expected it was
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`nutritionally-appropriate for a child in the identified age range, instead of a product that is not
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`recommended by all relevant expert bod